Background on NARA Classified MOUs
The National Archives and Records Administration (NARA) has always sought to operate within the delicate balance of making as much information available to the public as possible, while protecting classified national security information as determined by other agencies. In 2001 and 2002, NARA entered into two classified Memoranda of Understanding (MOU), with the CIA and the Air Force, addressing their re-review of open records that may have been inadvertently or improperly declassified because one or more agencies did not have an opportunity to review the records for their classified information.
NARA had three principal goals in agreeing to these MOUs:
- protection and proper handling of the records;
- minimizing the impact on researchers by trying to expedite the reviews of records subject to pending requests; and
- minimizing the number of withdrawals. At the time, NARA believed that establishing written procedures was essential to achieving these goals and outweighed the agencies' determination that the MOUs be classified.
While NARA had entered into these MOUs with the best of intentions, Archivist of the United States Allen Weinstein has given clear direction that never again will the National Archives enter into such classified agreements. Professor Weinstein has stated, "There can never be a classified aspect to our mission. Classified agreements are the antithesis of our reason for being. Our focus is on the preservation of records and ensuring their availability to the American public while at the same time fulfilling the people's expectation that we will properly safeguard the classified records entrusted to our custody. Agencies have the prerogative to classify their requests to NARA if disclosure of the reasons why they are asking us to take action would cause identifiable damage to national security. However, what we do in response to such requests, and how we do it, will always be as transparent as possible. If records must be removed for reasons of national security, the American people will always, at the very least, know when it occurs and how many records are affected."
In addition to the above, these MOUs, even in their unclassified formats, will soon be replaced by thoroughly transparent standards governing the review of previously declassified records that have been available for research at the National Archives. These standards are currently being developed by the Information Security Oversight Office (ISOO) and will be promulgated as a change to "Classified National Security Information Directive No. 1" (32 CFR Part 2001) following formal interagency coordination, to include an opportunity for public comment.
Recently, NARA mistakenly indicated that there was only one classified MOU dealing with the issue of " reclassification," when, in fact, there were two. This confusion was a result of a distinction in the minds of NARA staff between the Air Force MOU, which dealt with a specific re-review activity, and the CIA MOU, which was generic and procedural in nature. Upon learning of the second MOU last week, the Archivist, in keeping with his stated policy, requested its immediate declassification.
The following chronology attempts to provide the background and context of this issue:
- The declassification of hundreds of millions of pages of records under Executive Order 12958 and predecessor orders inevitably resulted in mistakes, largely due to one agency not being afforded the opportunity to review its classified information found in the records of other agencies. Even an error rate of only 0.01% would result in tens of thousands of pages of improperly disclosed records. While NARA believes that such mistakes are unavoidable and should be accepted as a necessary risk to the value of declassification of permanent historical records, many agencies nonetheless insisted that they needed to re-review open records and withdraw some of them from public access.
- Accordingly, the Kyl and Lott Amendments of 1999 and 2000 required NARA and the Department of Energy (DOE) to create a plan to prevent the inadvertent release of records containing Restricted Data (RD) and Formerly Restricted Data (FRD). One of NARA's main concerns in implementing this plan was to minimize the burden that a re-review of open records would have on researchers, by getting DOE to expedite the review of any box that had been requested by a researcher.
- Similarly, in 1999, a NARA employee discovered that records in approximately 56 boxes of State Department Intelligence and Research (INR) files might have been improperly declassified because they appeared to contain sensitive intelligence information. NARA reported this matter to State, CIA, and the Information Security Oversight Office (ISOO). The agencies determined that, in this case, a mistake in the declassification processing had occurred, resulting in inadvertent disclosures. A review was conducted by State and CIA, which took nearly two years to complete, and resulted in the withdrawal of a large number of documents that had previously been opened, despite NARA's urging that withdrawals be kept to a minimum. The re-review by CIA also resulted in a significant mishandling of the records, such that the order of the documents in many boxes was lost. (Some of the boxes remained in NARA's closed stacks until 2005 because researchers had not requested them until then.)
- Because of this unfortunate experience, NARA sought to establish more effective procedures in the event that any future re-reviews of open records might occur. In early 2001, NARA provided the CIA with an unclassified draft memorandum of understanding proposing such procedures. As noted above, NARA's principal interest was in ensuring that the records were properly handled and that the review of open records was done expeditiously in order to minimize the burden on researchers - i.e., avoid researcher complaints - as well as to minimize the number of records withdrawn. The CIA revised the draft, and classified it (and required that the document remain classified thereafter). A final MOU was signed on October 24, 2001. At the Archivist's request, the CIA agreed to declassify it on April 14, 2006.
- The CIA MOU also addressed CIA's concern that its association with the re-review effort, and the identification of its classified equities in other agencies' records, could itself, under certain circumstances, be classified information. Accordingly, it is not unheard of that the acknowledgement of one agency's classified equity in the records of another agency could be classified in itself and thus require protection from disclosure, including by referring any appeals to the denial of records to a different agency. This issue is addressed in section 3.6(b) of Executive Order 12958, as amended, which states:
" When an agency receives any request for documents in its custody that contain information that was originally classified by another agency, or comes across such documents in the process of the automatic declassification or systematic review provisions of this order, it shall refer copies of any request and the pertinent documents to the originating agency for processing, and may, after consultation with the originating agency, inform any requester of the referral unless such association is itself classified under this order or its predecessors." (Emphasis added.)
- Since the 2001 MOU, CIA has re-reviewed and withdrawn open records on at least three occasions.
- Subsequently, in 2002, the Air Force requested that NARA sign a similar classified MOU, to address a particular problem of improper declassification that they had identified. The Air Force MOU is modeled on the CIA MOU. NARA's interest in signing this MOU was the same as with the CIA MOU, i.e., to ensure that the records were properly handled, that the review of open records was done expeditiously in order to minimize the burden on researchers, and to minimize the number of records withdrawn. At the Archivist's request, the Air Force agreed to declassify a redacted version of the MOU on April 10, 2006. The MOU remains classified in part because compromise of that information will cause identifiable damage to national security.
- NARA's intent and practice has never been to hide the fact that agencies were engaged in efforts to re-review, and withdraw, open records because they had been inadvertently or improperly declassified. For example, NARA personnel discussed this review at the State Department's Historical Advisory Committee June 2003 meeting, the proceedings of which are published on the State Department's website (see http://www.state.gov/r/pa/ho/adcom/mtgnts/21201.htm). NARA also readily responded in January 2006 to Matthew Aid's inquiry that such a program existed.
- NARA has no original classification authority, and is obligated to abide by the classification requirements of any document. This could include, for example, not acknowledging the presence of certain agency personnel or not identifying the fact that classified information in the records of one agency may belong to another agency, but only when those specific facts were classified. Nonetheless, the National Archives will never again enter into a classified agreement.
- Other re-reviews and withdrawals for classification of open records have occurred at NARA - at the behest both of NARA staff and other agencies - including at Presidential Libraries. NARA continues to identify instances where classified records were opened to the public without agencies having the opportunity to review them. However, until the ISOO audit, NARA had not systematically kept track of all these instances, and thus did not know the full extent of what had been withdrawn.
- In addition, following September 11, 2001, in response to the memorandum from Secretary Andrew Card to all agencies dealing with the safeguarding of information regarding weapons of mass destruction and other sensitive documents related to homeland security, NARA re-reviewed selected unclassified records under its " records of concern" program and has withdrawn unclassified documents that had previously been open to public access.
- The ISOO audit will provide more information on the classification re-reviews that have taken place and recommendations for policy guidance.
- NARA does not change or modify records in its custody, except to the extent that redactions are made when portions of records need to remain classified or are exempt for other reasons.
This background paper on NARA's involvement with the classified MOUs was prepared at the request of Professor Allen Weinstein, Archivist of the United States since February 2005.